Lawyers plan class-action to reclaim “$100M+” RIAA “stole”

Lawyers in this year's two highest-profile file-sharing cases have joined …

The recording industry has spent (and continues to spend) millions of dollars on its litigation campaign against accused file-swappers, but if two lawyers have their way, the RIAA will have to pay all the money back. Not content simply to defend Jammie Thomas-Rasset in her high-profile retrial next week in Minnesota, lawyer Kiwi Camara is joining forces with Harvard Law professor Charles Nesson to file a class-action lawsuit against the recording industry later this summer.

Stopping the lawsuits

Ars spoke with Camara on Tuesday as he rode to the airport for the flight to Minneapolis, where he will defend Jammie Thomas-Rasset after only two weeks of preparation. But the time crunch has in no way restricted his vision; Camara says that he is intent on dismantling the entire RIAA litigation campaign by going after its legal underpinnings.

Camara's firm doesn't do easy cases, and even in pro bono cases, "we want to fix a problem for a lot of people, including our client."

That means doing more than getting Thomas-Rasset off without a guilty verdict, and it's why Camara has already gone after the two fundamental pieces of RIAA evidence in these cases.

First up was the evidence from hired investigator MediaSentry, which tracked down IP addresses of file-sharers and provided the only evidence of observed copyright infringement. Camara has argued that MediaSentry was not licensed as a private investigator in Minnesota, that it ran an illegal "pen register," and that its evidence should be barred. Such a move would essentially destroy the RIAA's main evidence of copyright infringement, and it's no surprise that the trade group has pushed back hard.

But Camara goes even further back in the evidence chain. To prove copyright infringement, the RIAA needs evidence of that infringement, of course, but it also needs to prove it owns the copyrights in question. If it can't establish that fact, the case also falls apart.

This sounds like a long shot—surely the record labels did something as basic as register their copyrights?—but Camara tells us that it's not so simple.

"They basically committed a technical screw-up," he says of the RIAA. That's because lawyers provided the court with "true and correct" copies of their copyright registrations (perhaps accurate but not "official), but these are not the "certified copies" required under federal rules of evidence.

The RIAA seemed taken aback by Camara's pretrial complaint and asked the judge in the case to simply take "judicial notice" of the validity of its forms. But, after a telephone conversation on Monday, the judge refused to do that.

He also rejected the RIAA argument that "hey, these forms were good enough for Thomas' first trial, so they're good enough now." The judge pointed out that "the Court's Order granting a new trial in this matter granted an entirely new trial on all issues. The fact that Defendant did not object to Plaintiffs' evidence of registration in the First Trial does not preclude Defendant from putting Plaintiffs to their burden of proof on this issue in the retrial."

The RIAA admitted that "it will be difficult and expensive to now attempt to obtain certified copies from the US Copyright Office in time for trial." Whoops.

Even if the RIAA comes up with the documents, though, Camara still has objections to their contents (or lack thereof). The registrations don't include the actual "specimen," for one thing (in this case the actual sound recording filed with the Copyright Office), so Camara says he has no way to know what was actually filed and whether it truly is identical with what Thomas-Rasset is accused of sharing.

He will also charge that the registrations are simply invalid, since they were all done in the names of the various record labels, not of the artists. But the "work for hire" law under which this was done has been improperly applied in these cases, he says, and the registrations are therefore defective.

Taken together, the two lines of attack on the RIAA's main evidence are an attempt to cripple the recording industry case before it even reaches the question of whether Thomas-Rasset actually "did it." Which is probably just as well, since there is some fairly compelling evidence against her, evidence good enough to secure a guilty verdict the first time around.

Getting the money back

But not even this sort of attack on the RIAA's methods goes far enough for Camara. He tells Ars that he and Harvard Law professor Charles Nesson will file a class-action lawsuit against the industry at some point after the conclusion of the Thomas-Rasset case in an effort to make the labels pay back all monies taken in from settlements with file-sharers.

Or, in Camara's words, he's going to "get the $100 million that they stole." (The RIAA tells Ars that the $100 million figure is inaccurate, and RIAA general counsel Steven Marks indicated in a recent Ars op-ed that the labels had lost money on the campaign.)

The idea behind the suit is that the RIAA has illegally threatened people, using void copyright registrations, and scared them into paying an average of $3,000 or $4,000 apiece to fend off the threat of federal litigation.

Big picture thinking

If all of these arguments weren't enough, the Nesson/Camara tag team have a couple more eyepoppers to make: P2P file-sharing of copyrighted material is fair use, and huge statutory damage awards against noncommercial users are unconstitutional.

Clearly, "thinking small" doesn't interest either man—Nesson has the nickname "Billion Dollar Charlie" for a reason, and it's not surprising to learn that Camara studied with Nesson at Harvard and calls him "the smartest person that I know." Camara, for his part, is a sharp lawyer who was the youngest person ever to enroll in Harvard Law.

As he prepares to fly up to Minnesota today, Camara says, "We're ready for trial." He also says that he plans to win.

75 Reader Comments

For those keeping score at home, the certified copy thing has also come up in the loads of foreclosure cases -- those things need to be certified with the government somewhere (county clerk in my neck of the woods) or they are technically invalid.

From all looks of it, it looks like the RIAA are scrambling to cover their collective butts and if these two succeed (which by god almighty I HOPE THEY DO!) that would mean pretty much the end of the RIAA, end of their gangster tactics, a retractable baton up their behinds (yes, a tpb homage), end to 5+ years of abusing the legal system, end to the suffering of thousands of people unjustly accused of "crimes" they didnt commit, end to the protection racket (ie. pay up or we sue and something bad is gonna happen to you) etc etc

ABSOLUTELY FANTASTIC NEWS! Best of luck Mr.Camera and Mr.Nesson, and god bless.

Cheers from Sweden!-eZee.se

P.S First person to compare p2p with 'stealing' in the later comments is officially a moronic baboon.

Awesomeness! These guys are doing for the public what our legislators should have been doing for a very long time. Lets hope they can kill the mafiAA! It will be the best public service done for the citizens of this country in a very long time.

Originally posted by David Bradbury:Wow, it looks like their out to dismantle the copyrights owned by the recording companies and give them back to the artists. Go big or go home, I guess.

That would probably be a good thing, because then instead of the recording companies dictating to the artist, the artist would have a chance to dictate their own terms thus releasing the straglehold the recording companies have on the aritsts. It might even force a completly new business model for the recording companies.

In reference to the article its self; Sounds like a plan to me. I hope Jammie and such a class action prevails and wins the day.

It's nice to see that the world has checks and balances. The RIAA, ever more arrogant, has its comeuppance served right back.

The sad thing is that there probably is a happy middle ground for consumers, middle-men like the RIAA, and content producers/artists. But, we never had a chance to get there because the RIAA went with a no-holds barred attack on its client base.

Even though I don't believe P2P file sharing is fair use, I do believe that their other points are completely valid. The whole campaign has basically been legal extortion on the part of the RIAA. I just hope they can find some RICO* statutes to throw in there and get some criminal proceedings against the RIAA.

MediaSentry collected "evidence". But who is MediaSentry? They are a private company hired by the plaintiff. Since when can anybody just hire someone to collect "evidence" to be used in a legal proceeding? Is there not requirement that the agent should be impartial, or at least QUALIFIED to collect evidence?

Originally posted by repatch:I've always been confused by one element of these "proceedings":

MediaSentry collected "evidence". But who is MediaSentry? They are a private company hired by the plaintiff. Since when can anybody just hire someone to collect "evidence" to be used in a legal proceeding? Is there not requirement that the agent should be impartial, or at least QUALIFIED to collect evidence?

If I spend $1k on ropes and harnesses to break into your high-rise condo, only to find that it's empty save a $5 bill, taking that $5 bill means that I've stolen $5. Having suffered a net loss of $995 doesn't mean that I haven't stolen $5.

Seriously, these people are morons. Fighting them at every step will cost them a fortune, which is beautiful.

Originally posted by repatch:I've always been confused by one element of these "proceedings":

MediaSentry collected "evidence". But who is MediaSentry? They are a private company hired by the plaintiff. Since when can anybody just hire someone to collect "evidence" to be used in a legal proceeding? Is there not requirement that the agent should be impartial, or at least QUALIFIED to collect evidence?

Originally posted by mChaboud:They've lost money on the campaign, so they haven't stolen anything?

If I spend $1k on ropes and harnesses to break into your high-rise condo, only to find that it's empty save a $5 bill, taking that $5 bill means that I've stolen $5. Having suffered a net loss of $995 doesn't mean that I haven't stolen $5.

Seriously, these people are morons. Fighting them at every step will cost them a fortune, which is beautiful.

I agree, it doesn't matter how much they lost. The losses are only the difference between what they wanted to make vs what they actually made. They didn't have any loss at all. If they had taken the cases for free then everything they made would have been pure profit. I think they were trying for the sympathy angle here like we were supposed to think "Oh, poor RIAA, you did all this at a loss because your such good guys." Borrowing your example; even though you spent $1k on the equipment to break in and only got $5.00 doesn't mean you had a loss in terms of profit because you should not have been breaking in and been there to begin with to take something that wasn't yours in the first place.

The RIAA should not have started this crusade, so any loss was due to their own doing. Have sympathy for them? Hmmm...no..I don't think so.

The RIAA admitted that "it will be difficult and expensive to now attempt to obtain certified copies from the US Copyright Office in time for trial." Whoops.

Suddenly the not asking for the trial delay makes complete sense (funny since the RIAA was pushing against the delay as well, even though it's customary when changing lawyers). Before I thought he was just grandstanding and that this was going to be another disasterous result.

The best bet for the client would probably be to settle after scaring the shit out of the RIAA, although I somehow doubt Camara is at all interested in settling.

Plus, on the outside chance that he can win on basically any of these points, it would completely cripple the RIAA's case at least in this single case, and possibly the entire legal campaign. If he manages to do that, I'd definitely buy the guy a bear.

Originally posted by mathrockbrock:Kiwi is such a ridiculous name, I didn't expect much. But he sounds like a real pit bull! Of course, that's an admirable quality for a lawyer on your side, and a terrible quality in a human being

A company I worked for had a "pitbull award" program for the sales force. It consisted in a full size big bad black leather collar adorned with two rows of ½ inch chrome spikes, epoxy-glued to a mahogany plaque above a gold engraving of the date and details of the feat in addition to the name of the recipient. Truly awesome thing for a sales rep's wall above their eng'ing license.

Originally posted by Personne:A company I worked for had a "pitbull award" program for the sales force. It consisted in a full size big bad black leather collar adorned with two rows of ½ inch chrome spikes, epoxy-glued to a mahogany plaque above a gold engraving of the date and details of the feat in addition to the name of the recipient. Truly awesome thing for a sales rep's wall above their eng'ing license.

If Kiwi wins this, I propose passing the hat to get one sent to him.

Seconded. I will gladly put in to the pot for such an award on that glorious day, and you can can screencap and print this for proof.

Originally posted by Derek Kent:Plus, on the outside chance that he can win on basically any of these points, it would completely cripple the RIAA's case at least in this single case, and possibly the entire legal campaign. If he manages to do that, I'd definitely buy the guy a bear.

Can laywers be saints?

He'd have to be to drink a whole bear.

Also, I think that's the point behind this barrage (as well as Nesson's flurry of claims): formally question major aspects of the RIAA's legal campaigning in court, force them to explain and defend almost all their tactics and justify all their claims, justify all assumptions they operate under, rather than what they're used to doing: utterly railroading defendants with unreasonably short notices, vague claims and shaky evidence. Now the RIAA is being called out on their methods of evidence collection, how much damages they can request, and even their legal standing to sue.

A thorough, multi-pronged and deeply penetrating examination of their entire M.O. is being brought out to put under judicial scrutiny. If Camarra and Nesson win on even a fraction of the points made in their respective cases, it might force the RIAA to change strategies in the future by influencing the body of case law surrounding these suits.

The RIAA admitted that "it will be difficult and expensive to now attempt to obtain certified copies from the US Copyright Office in time for trial." Whoops.

Suddenly the not asking for the trial delay makes complete sense (funny since the RIAA was pushing against the delay as well, even though it's customary when changing lawyers). Before I thought he was just grandstanding and that this was going to be another disasterous result.

The best bet for the client would probably be to settle after scaring the shit out of the RIAA, although I somehow doubt Camara is at all interested in settling.

Plus, on the outside chance that he can win on basically any of these points, it would completely cripple the RIAA's case at least in this single case, and possibly the entire legal campaign. If he manages to do that, I'd definitely buy the guy a bear.

Can laywers be saints?

I don't think he has to really try and win on any one point. What he has to do is force the RIAA into a corner forcing them to defend their selfs and prove their way out of that corner, then pick apart it apart and introduce enough doubt. If he can do that I think the case would be a win for him. You will notice that in the past cases that the RIAA has always been on the offensive forcing the defense to defend. In this case if Kiwi becomes the agressive offense, adopting the RIAA's own blitzkriege style tactics of going on the aggressive offense, and starts forcing the RIAA to continually defend their stance and prove negatives, it might work.

This is like a boxing match, the one who is more aggressively offensive is generally the winner. The only difference here is this match uses words and the rules are more nit pickey.

All I can say is about time! These RIAA thugs have been railroading people for far too long. The general public is usually clueless about such "complex" issues but I see the tides finally turning against these maffiestas now. Go Harvard .. Rip Boom Bah!!

Originally posted by Personne:A company I worked for had a "pitbull award" program for the sales force. It consisted in a full size big bad black leather collar adorned with two rows of ½ inch chrome spikes, epoxy-glued to a mahogany plaque above a gold engraving of the date and details of the feat in addition to the name of the recipient. Truly awesome thing for a sales rep's wall above their eng'ing license.

If Kiwi wins this, I propose passing the hat to get one sent to him.

Seconded. I will gladly put in to the pot for such an award on that glorious day, and you can can screencap and print this for proof.

Originally posted by BarkinB:Aren't the artists the client base for the RIAA? We music consumers are the cash cows they've been carving roasts out of.

Common misconception. In both name and deed the Recording Industry Association of America serves the record labels, not the artists signed on those labels (although as the RIAA is an independent organization, rarely they go against the will of the labels because it is in the RIAA's own best interest to do so). The labels themselves are typically publicly traded, and artists have little say in how they act; so the labels and their stockholders are their client base, so to speak.

I expect in the future what will replace the record labels is either artist guilds or credit-union-style labels where signed artists ARE the shareholders.